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York v. BNSF Railway Co.

United States District Court, D. Colorado

February 21, 2019

Roddy York, Plaintiff,
v.
BNSF Railway Company, Defendant.

          ORDER

          RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE.

         This is a toxic tort suit alleging negligence liability under the Federal Employers' Liability Act (“FELA”) and failure to maintain adequate conditions pursuant to the Locomotive Inspection Act (“LIA”). In short, Plaintiff York-employed as a conductor/brakeman by Defendant BNSF Railway Company (“BNSF”) from 1976 to 1991-alleges on-the-job exposure to various carcinogens, to which he attributes his development of bladder cancer.

         Before the Court are Defendant BNSF's Daubert motions to exclude testimony by York's causation expert Dr. E. Roy Berger (Berger Motion, ECF Nos. 52, 53) and liability expert Michael Ellenbecker, Sc.D. (Ellenbecker Motion, ECF Nos. 54, 55), to which York responded (Berger Response, ECF Nos. 56, 57; Ellenbecker Response, ECF Nos. 58, 59). BNSF replied to each response. (ECF Nos. 63, 64.)[1] BNSF further filed a motion for summary judgment, arguing in the alternative that (1) without the testimony of his experts, York has failed to mount a prima facie case; (2) even if their testimony is not excluded, York's claims fail because his experts have not offered evidence on necessary elements; and (3) York filed this case beyond the three-year statute of limitations deadline. (See generally SJ Motion, ECF No. 61; see also SJ Reply, ECF No. 77.) York responds by (1) agreeing that exclusion of Dr. Berger would be fatal to his case (but maintains exclusion of Ellenbecker is not); (2) arguing that, if included, the expert's testimony would supply the facts necessary to establish his case; and (3) contending that he filed within the limitation period. (See generally SJ Response, ECF No. 75.) The parties have requested a hearing on BNSF's motions. (ECF Nos. 60, 65.)

         I. BACKGROUND

         A. Development of Cancer

         Plaintiff York was a conductor/brakeman with BNSF from 1976 to 1991. (Statement ¶ 4.)[2] He filed this action on May 2, 2014, alleging that occupational exposure to diesel exhaust (benzene) and asbestos during his time with BNSF caused him to develop bladder cancer. (Id. ¶¶ 1-3.) Both FELA and LIA violations are alleged as based on York's exposure to these dangerous or hazardous chemicals. (Id. at 5-6.)

         York developed symptoms of edema of the torso (excess liquid) and sought medical treatment on February 17, 2014, at which time he underwent a series of tests, including urine analysis. (Id. ¶ 7.) York returned to the doctor on April 3, 2014. (Id. ¶ 8.) At that time, York learned that he had microscopic hematuria. (Id.) The doctor “discussed with [York] the finding and significance of hematuria, ” which included

GU malignancies, infection, kidney stones, benign tumors, various congenital defects, medications such as blood thinners, renal diseases, excessive exercise, prostate enlargement urinary tract obstruction, injury, hematospermia, and faux hematuria.

(Id.; ECF No. 76-5, at 5.) By then, York was concerned that he had bladder cancer (Statement ¶ 9), but he did not receive a positive diagnosis of the same until May 14, 2014. (Id. ¶ 10.)[3]

         B. Expert Testimony

         In support of his claims, York disclosed two experts-Dr. Berger, who is offered to provide an opinion on the cause of York's bladder cancer, and Mr. Ellenbecker, who is offered to opine on BNSF's liability. (Id. ¶¶ 12-13.) To support his opinion, Dr. Berger performed approximately five hours of research on the effects of diesel exhaust and asbestos. (Id. ¶ 14.) On June 28, 2018, Dr. Berger produced a report with his findings based on his review of “medical records on Roddy York . . . [and] the current literature re: workplace health risk to Mr. York.” (Berger Report, ECF No. 76-7, at 2.) Based on the sources cited in the bibliography and a recitation of notes from York's medical visits (none of which mention diesel, exhaust, fumes, asbestos, any other carcinogenic chemical, or even suggest that York has ever been in the vicinity of a locomotive, freight car, or related building or facility), Dr. Berger's report concludes:

York was exposed to diesel fuel, fumes and exhaust from working on and around diesel locomotives on a daily basis. Mr. York was also exposed to creosote from walking on railroad ties while inspecting and making up trains. He was exposed to asbestos located on and in the diesel locomotives and brake shoes on the locomotives and freight cars as well as pipe covering on the steam pipes in the building and facilities.

(Id. at 7.) This conclusion was drafted by York's counsel, who supplied it to Dr. Berger for inclusion in his report. (Berger Dep., 76-2, at 17:15-22.) Other than the information quoted above and discussions with counsel, Dr. Berger received no information whatsoever concerning York or his work conditions from any other source. He did not review York's work history documentation; assess chemical testing records; speak with York; analyze worksite conditions at BNSF; read the deposition transcripts of York or any other witness in this case; or interview anyone except York's counsel in forming his opinions. (Id. at 17:23-19:12.) Moreover, Dr. Berger does not plan to perform any additional work on this case. (Id.) Finally, the report indicates that York's father had colon and bladder cancer, and York smoked from his mid-teens to 2016. (Berger Report at 5.)

         At his deposition, Dr. Berger clarified that he was offering causation opinions with respect to diesel exhaust and asbestos only. (Berger Dep. at 20:9-13.) He testified that he reviewed a study concluding that diesel exhaust and asbestos are associated with bladder cancer[4] but added that he had not found a single study concluding that diesel exhaust causes bladder cancer. (Statement ¶ 15.) Dr. Berger could not testify to the specific doses of diesel exhaust or asbestos to which York was exposed-if he was exposed at all-while working for BNSF:

Q: Do you have any reason to believe that Mr. York received exposures to diesel exhaust while inside the locomotive in his job for the railroad?
A: Frequently they don't close the windows to the locomotives especially when they're just sitting there and not moving, but I can't quantitate his exposure. . .
Q: Did -- did Mr. York work with the windows open or closed --
A: I don't know.
Q: -- you can't say, as we sit here today, that under the circumstances alleged by Mr. York that he would have been present to be exposed by the time those particulates fell to a level of exposure of a person; fair?
A: I don't know the answer to that.
Q: Did you attempt to do an analysis of the level of exposure, if any, of Mr. ...

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